DeLuca v. New York News Inc.

• Decision Date: 14 April 1981
• Citation: 109 Misc.2d 341,438 N.Y.S.2d 199
• Parties: , 7 Media L. Rep. 1302 Albert DeLUCA, Plaintiff, v. The NEW YORK NEWS INC. and Daniel O'Grady, Defendants.
• Court: New York Supreme Court

Page 199

438 N.Y.S.2d 199

109 Misc.2d 341, 7 Media L. Rep. 1302

Albert DeLUCA, Plaintiff, v. The NEW YORK NEWS INC. and Daniel O'Grady, Defendants.

Supreme Court, Trial Term New York County, Part XI.

April 14, 1981.

Pastore & Akst, New York City, for plaintiff.

Patterson, Belknap, Webb & Tyler, New York City (Zachary W. Carter and Michael B. Mukasey, New York City, of counsel), for defendants.

SHANLEY N. EGETH, Justice:

THE ACTION

This is an action seeking damages for defamation from the New York Daily News and one of its reporters who authored a news article concerning plaintiff, allegedly based upon Court files involving litigation between plaintiff and the New York City Board of Education.

FACTS

The subject article contained the headline "Sue No-Show Teacher for 61G In Pay Given Out by Mistake". The text reads as follows:

"The Board of Education paid a no-show teacher for three years and nine months and now is suing to get the $61,282.90 back.

The board doled out about $1,346 a month for 45 months before noticing its mistake, according to papers filed in Manhattan Supreme Court last week. The beneficiary was Albert DeLuca, 64, of 1401 73rd Street, Bensonhurst, Brooklyn.

DeLuca was a teacher of dental mechanics from George Westinghouse Vocational High School, Brooklyn. He was His pay checks kept coming until August 31, 1975, according to Court papers. That was when someone at the board realized that DeLuca was not entitled to any pay while on health leave. DeLuca then retired.

beaten up by a student on October 13, 1971. He went on disability leave for a month with injuries to his right side and head, and then was transferred to what is called health leave, effective November 15, 1971.

He Is Called Liable

The board's Court papers said, 'The payments were made in violation of rules, regulations and bylaws of the (Board of Education) and were in violation of law, and therefore (DeLuca) is liable for the salary paid him for November 15, 1971 to August 31, 1975.'

DeLuca through his attorneys, James Brady and James Sandner, sought to have the board's suit thrown out of Court on the ground that the statute of limitations had run out on collecting the back pay. However, Supreme Court Justice Nathaniel Helman ruled that the board's belated attempt to recoup the misspent money came just in time.

Helman did not rule on the merits of the board's case. These remain to be hashed out in the Courts, probably for the next few years.

No mention was made in the Court papers as to what, if anything, ever happened to the student who beat up DeLuca."

In essence, plaintiff contends that the use of the characterization "No-Show" teacher constitutes actionable defamation. Plaintiff attempts to raise other minor inaccuracies in the text of the article, but this Court determines that they are so minor, insignificant and frivolous as to be wholly undeserving of serious consideration or comment.

PRIOR MOTION AND ITS EFFECT

Defendants previously moved for summary judgment upon the sole ground that the publication was absolutely privileged as a report of a judicial proceeding and therefore, protected by the provisions of Section 74 of the Civil Rights Law (McKinney's Cons. Laws of N.Y., vol. 8, 1980). That motion was denied by Mr. Justice Greenfield of this Court. Judge Greenfield noted that the term " 'no-show' is generally understood to connote a person who is able to work but fails to show up" and then concluded "it cannot be said as a matter of law that the average reader would not view Mr. DeLuca as, at a minimum, disreputable, upon reading the article". He then determined that "are no facts in the Court papers cited by the authors which support such a characterization" (referring to the term no-show), and that "judgment is inappropriate here since an average reader could well have pictured plaintiff, the subject of the story, as a person who failed to show up for work without justification and who was somehow able to obtain moneys to which he was not entitled".

Under the doctrine of law of the case, this Court is bound by the determination of Mr. Justice Greenfield, that a triable issue of fact exists as to whether the use of the term "no-show" in the article is defamatory and as to whether the article constitutes a fair report of the judicial proceedings. This Court will therefore exclude any consideration of these issues from its determination as to the issues raised on the instant motion.

In so doing, however, the Court will not ascribe to the earlier decision a scope beyond its actual holding as plaintiff would appear to be now urging this Court to do. The actual necessary determinations contained in the decision upon which the holding is based are clearly binding upon this Court as law of the case.

The prior decision determined that there was a triable issue of fact as to whether the article was an accurate report of a judicial proceeding, because the term "no-show" was susceptible to the defamatory meaning discussed therein. The meaning of a term is normally a jury question (see, e. g., November Moreover, that decision merely decided that defendants were not entitled to summary judgment based upon one absolute privilege afforded by Section 74 of the Civil Rights Law. It in no way precludes this Court from deciding whether summary judgment is appropriate on any other grounds.

                v. Time, 13 N.Y.2d 175, 179, 244 N.Y.S.2d 309, 194 N.E.2d 126;  Mencher v. Chesley, 297 N.Y. 94, 100, 75 N.E.2d 257;  Morrison v. Smith, 177 N.Y. 366, 369, 69 N.E. 725;  Schermerhorn v. Rosenberg, 73 A.D.2d 276, 283, 426 N.Y.S.2d 274;  McCullough v. Certain Teed Prods.  Corp., 70 A.D.2d 771, 417 N.Y.S.2d 353).   Any discussion beyond this as to the meaning of the term went beyond the issue required to be adjudicated, and, while instructive, are not dispositive of the issues before this Court
                

INSTANT MOTION

Defendant again moves for summary judgment claiming separate entitlement to the relief upon each of the following grounds:

A. The article is protected as a neutral report of newsworthy statement.

B. Plaintiff is a public official; therefore, he has the burden of showing actual malice on the part of the defendants, and he has failed to meet it.

C. Plaintiff has not met its burden of showing that this article, concerning a matter of public interest, was published in a grossly irresponsible manner.

D. The article is protected because the expressions complained of are pure opinion and therefore not actionable, and they constitute privileged fair comment on the events reported.

In libel and slander actions where cherished First Amendment freedoms are involved, our Courts have been especially sensitive to see that summary judgment be granted if evidentiary facts sufficient to raise a triable issue of fact are not adduced (see Rinaldi v. Holt, Rinehart, 42 N.Y.2d 369, 384, 397 N.Y.S.2d 943, 366 N.E.2d 1299; cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 456); James v. Gannett Co., 40 N.Y.2d 415, 386 N.Y.S.2d 871, 353 N.E.2d 834; Chapadeau v. Utica Observer-Dispatch, Inc., 38 N.Y.2d 196, 200, 379 N.Y.S.2d 61, 341 N.E.2d 569; Trails West v. Wolff, 32 N.Y.2d 207, 221, 344 N.Y.S.2d 863, 298 N.E.2d 52; Gilberg v. Goffi, 21 A.D.2d 517, 527, 251 N.Y.S.2d 823, aff'd. 15 N.Y.2d 1023, 260 N.Y.S.2d 29, 207 N.E.2d 620). As a matter of fact, it would appear that "judgment is the rule, not the exception in defamation cases". (Unification Church v. Harper & Row Publishers, Inc., 101 Misc.2d 30, 34, 420 N.Y.S.2d 56 Guitar v. Westinghouse Electric Corp., 396 F.Supp. 1042, 1053 aff'd. 538 F.2d 309 Salcedo v. El Diario Pub., 5 Med.L.Reptr. 2308, 2309; cf. Greenberg v. CBS, Inc., 69 A.D.2d 693, 700, 419 N.Y.S.2d 988). In the recent Court of Appeals case Karaduman v. Newsday, Inc., 51 N.Y.2d 531, 545, 435 N.Y.S.2d 556, 416 N.E.2d 556, Justice Gabrielli stated: "Indeed, we must not be reluctant to apply the ordinary rules governing summary judgment in libel cases such as this since 'threat of being put to the defense of a lawsuit ... may be as chilling to the exercise of the First Amendment freedoms as fear of the outcome of the lawsuit itself' ". In opposing this motion, plaintiff is required to meet the burden of adducing sufficient facts to raise a triable issue (E.g. Freedman v. Chemical Construction Corp., 43 N.Y.2d 260, 401 N.Y.S.2d 176, 372 N.E.2d 12; Shaw v. Time-Life Records, 38 N.Y.2d 201, 207, 379 N.Y.S.2d 390, 341 N.E.2d 817).

DISCUSSION

Each of the defendants' contentions will be separately discussed and disposed of.

A. REPORT ON NEWSWORTHY EVENT

Defendants argue that the publication is protected as a neutral report of newsworthy statements. The applicable rule of law with regard to this privilege has been expressed in substance in the following manner. If the mere fact that a statement is made is itself newsworthy, then the Defendants, in their scholarly brief, accurately point out that the privilege to report judicial proceedings and the privilege to report newsworthy statements are not identical, each having its own origin and purpose. The first insures the truly public character of public records and proceedings (cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92, 95 S.Ct. 1029, 1044-45, 43 L.Ed.2d 328 while the second guarantees that the public will be informed about newsworthy contentions (see Edwards v. National Audubon Society, Inc., 556 F.2d 113, 120 cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 They argue that the prior holding that the term "no-show" could not be said, as a matter of law, to accurately report the judicial proceedings as a whole, does not preclude a finding that it accurately reports the Board's allegations. The Court cannot accept this conclusion although it does agree with the postulation of applicable law.

                reporting of that statement by the press is protected expression, regardless of whether the statement is defamatory and false, and the press is not bound to verify the

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